Water Law Reform

November 23, 2014

Coastal sand dunes are one of Michigan’s most treasured resources. In 1994, the state enacted legislation regulating land use on sand dunes. The legislature intended to balance competing public and private interests over the resource. The Sand Dune Protection and Management Act (SDPMA) was extensively amended in August 2012. As amended, local governments have a significantly diminished role in determining land use on sand dunes within their borders.

Suzanne Sutherland is an attorney with Hilger Hammond in Grand Rapids, Michigan, specializing in commercial litigation, construction and real estate, and environmental law. She is a recent graduate of Wayne Law and published a Note in the Wayne Law Review that proposes more local control of sand dune land use regulation to better accomplish the state’s articulated protection goals. “Revision of Michigan’s Sand Dune Protection and Management Act Benefits Private Interests at the Expense of Local Zoning Regulations” suggests that a state-wide standard established by the SDPMA which allows local units of government to enact more environmentally protective ordinances ensures a minimum level of protection for the public interests. Because local governments are both closer to their constituents and more familiar with the unique characteristics of their neighborhoods, this is a more appropriate entity to make these decisions. The Note also explores impacts to Michigan’s vulnerability to regulatory takings lawsuits from property owners.

The 2012 amendment made four key changes to the SDPMA. First, there is a greater level of state preemption of local authority. Second, limitations on who may request a public hearing for a permit proposal further restrict local involvement. Third, permit applications now enjoy an effective presumption in favor of approval. Finally, more state control and less environmental research over what area should be classified as a “critical dune” erodes the public interest. Many other small changes demonstrate that the new SDPMA favors private property rights over local authority and public interests.

November 11, 2014

The following student post is by David Furman (B.S. Accounting, Oakland University, J.D., Wayne State University Law School, expected 2015). While in law school, David has clerked at a mid-sized law firm and is currently employed in the regulatory department of an international electrical transmission corporation. David is working as a student attorney this semester in the Transnational Environmental Law Cling. Also, special thanks to former Clinic student Andew Gonyea who worked on this project last semester.NS.

On September 12, 2014, the Michigan Department of Environmental Quality released a draft permit for comment regarding a controversial wastewater treatment plant to be constructed by the Cass County – Ontwa Township Wastewater System. Shortly before the draft permit was released, Save Cobus Creek, a grassroots organization of concerned citizens who opposed the construction of the plant, contacted the Great Lakes Environmental Law Center seeking assistance in challenging the draft permit. With the support of technical experts from Save Cobus Creek, the GLELCdrafted comments in opposition to the proposed plant. Download GLELC Comments - Proposed Cass Co - Ontwa Twp WWTP

The GLELC predicated their opposition to the permit on three substantive issues: (1) the potential increase in creek temperature; (2) the danger to wildlife; and (3) the applicants failure to justify an economic or social benefit within their Antidegredation Demonstration, as required by Rule 95 of the Michigan Administrative Code, MDEQ Water Quality Standards. As indicated by the application filed with the MDEQ, the proposed plant’s effluent would be discharged into Cobus Creek. Cobus Creek is a low-flow stream, the headwaters of which is located approximately one mile north of Indiana, in Ontwa Township, Michigan, flowing through Indiana for approximately seven miles, before emptying into the St. Joseph River. The proposed plant would discharge between 0.6 mgd to a maximum of 2.7 mgd. However, the flow rates of Cobus Creek vary from 2.0 mgd in September to 7.0 mgd in April. Accordingly, the proposed plant could increase Cobus Creek’s daily flow by anywhere from 33% to 135% during low flow and 9% to 39% during high flow. The increase in flow rates would likely cause erosion to Cobus Creek shoreline and streambed, as well as the undercutting of banks. Erosion and undercutting can cause an increase in water temperature, disruption of habitat, and mortality of wildlife, due to an increase in sediment transport.

An increase in water temperature is of substantial concern. Thermal pollution through degradation of water clarity poses significant risks to the aquatic environment of Cobus Creek. Cobus Creek is predominantly a cold-water creek, supporting a thriving trout population in Indiana. As creek temperature increases, cold-water species mortality rates increase. Dissolved oxygen content decreases, causing additional harm to species within the creek. As wildlife within the creek perishes, so does the wildlife that depends on the creek for sustenance. Further, as creek temperature increases, so does the risk of eutrophication. As we have seen with Lake Erie, eutrophication poses a grave danger to the ecosystem of any body of water. Ultimately, the reality of the situation is straightforward, the discharge of effluent into Cobus Creek will have substantial and lasting negative impacts on the environment in and surrounding the creek.

Further, pursuant to Rule 95 of the Michigan Administrative Code, MDEQ Water Quality Standards, an Antidegradation Demonstration must accompany an application to discharge. This demonstration must illustrate an economic or social benefit, which would outweigh the harm caused by the discharge of effluent. In Cass County - Ontwa Township’s demonstration, the applicants assert three deficient arguments: (1) the proposed draft permit will have lower effluent limits than what is currently enforced against the applicants, thereby benefitting the environment as a whole; (2) increase in employment; and (3) an ability to promote industrial growth. In response to these arguments, the GLELC provide an analysis to the MDEQ, which systematically invalidated each claim made by the applicants. Foremost, the applicants claim that the environment would benefit due to the lower limits imposed upon them is completely misleading. Currently, the applicants discharge their wastewater via pipeline to the Elkhart, Indiana, wastewater treatment plant, which then discharges into the St. Joseph River. By diverting their flow to a pristine creek, which currently experiences no effluent discharge, the environment is not benefitted. Further, The applicants claim that two permanent positions will be created by the construction of their wastewater treatment plant. However, two permanent positions do not outweigh the environmental harm that will occur to the creek from the discharge of effluent. Finally, applicant’s contention that industrial growth will occur from construction is wholly unsubstantiated and further, alarming, in that industrial customers are, in general, the worst polluters. For these reasons, the GLELC argued that the applicants had failed to establish a valid Antidegradation Demonstration.

On October 17, 2014, the GLELC submitted comments to the MDEQ. Five grassroots organizations joined in support of the GLELC contentions. The GLELC received significant positive feedback from these groups, and are thankful for their efforts in protecting the waters of the Great Lakes. In addition, the GLELC was recently informed that the EPA has become involved in the process, due to the interstate nature of the issues involved. The GLELC is hopeful that, with this latest intervention, a resolution, which protects the fragile ecosystem of Cobus Creek, will be forthcoming shortly.

February 01, 2014

In West v. Town of Long Beach, an Indiana trial court held that a local government resolution describing the ordinary high water mark and its property implications for Lake Michigan shoreline owners did not constitute a taking.

Long Beach Resolution 12-003 was passed in response to the Indiana Department of Natural Resources’ 2012 statement that stated, “The ordinary high water mark is the line on Lake Michigan and other navigable waterways used to designate where regulatory jurisdiction lies and in certain instances to determine where public use and ownership begins and/or ends.” Resolution 12-003 accepted this position and further stated that “the Long Beach Police Department shall only enforce private property ordinances between Lake Shore Drive and Lake Michigan in the following locations: A. The entire length and width of all publicly owned beach accesses above the elevation of 581.5 feet. B. The entire length and width of all lots owned by the Town of Long Beach, Indiana, above the elevation of 581.5 feet.”

Plaintiffs West and Gunderson have ownership rights on lots abutting Lake Michigan and challenged the Resolution as a taking. The trial court rejected their claim, holding that the Resolution at issue was not adverse to any property right and is “merely a statement of policy and does not speak to ownership of the land under discussion.” The trial court then briefly outlined major Indiana public trust doctrine cases; specifically U.S. v. Carstens, Nos. 3111101, 3111102, 3111103 (U.S. Dist. Ct., N.D. Indiana, Nov. 20, 2013), which held that “the land between the edge of the water of Lake Michigan and the ordinary high water mark is held in public trust by the State of Indiana.” Declining to address the question of ownership, the court concluded that any further issues on this matter would best be handled by the Indiana legislature or an appellate court matter in which the State is a party.

The decision puts Indiana in the majority of Great Lakes states, including Michigan, that recognize the public trust in the Great Lakes shorelines up to the ordinary high water mark. Notably, Ohio’s Supreme Court recently went in a very different direction, ruling that the “natural shoreline,” which it defined as the line at which water usually stands when free from disturbing causes, represents the boundary between privately owned uplands and the state-owned lakebed, with no public rights above the line.

Thanks to Kyle M. Peczynski (B.A., University of Michigan; J.D., Wayne State University Law School, expected 2014) for this student post.

October 02, 2013

The following student post is by Kyle M. Peczynski (B.A., University of Michigan; J.D., Wayne State University Law School, expected 2014). While in law school, Kyle has worked at the US EPA and Wayne Law’s Transnational Environmental Law Clinic.

The Wisconsin Supreme Court in July limited the scope of the state’s public trust doctrine when it rejected the state Department of Natural Resources’ reasoning used in support of a water level regulation for Lake Koshkonong. In a 4-3 decision in Rock-Koshkonong Lake District v. State Department of Natural Resources, 833 N.W.2d 800 (2013), the Court held that the DNR improperly relied on the public trust doctrine in making its decision to reject the Rock-Koshkonong Lake District’s (the District) petition to increase the lake’s water level.

Lake Koshkonong is a large, shallow lake in south-central Wisconsin that has approximately 27 miles of shoreline, with 12 of them being comprised of wetlands. The lake was created when the Rock River was dammed in the 1800s. Various parties have owned the dam, the most recent of which is the District. In 2003, the District petitioned the DNR to allow an increase in the lake’s water level, claiming that the shallow water had been causing problems for boaters, riparians, and plants and wildlife. The DNR rejected the petition, a decision that was upheld upon challenge by an administrative law judge, circuit court, and court of appeals.

There were four issues for review on appeal to the Wisconsin Supreme Court: (1) the level of deference that should be accorded to the DNR; (2) whether the DNR exceeded its authority in making a water level determination “in the interest of public rights in navigable waters” by considering the impact of lake water levels on adjacent private wetlands above the lake’s ordinary high water mark; (3) whether the DNR exceeded its authority by considering the statutory wetland water quality standards; and (4) whether the DNR erred in its decision by not considering the water level impacts on residential property value, business income, and public revenue.

The Court promptly disposed of the first issue, holding that since the DNR and the District were in dispute over the scope of the agency’s power, the agency was entitled to no deference and the issue would be reviewed de novo.

The Court then ruled against the DNR on two of the remaining three substantive issues. It acknowledged that the state of Wisconsin’s public trust doctrine protects waters for the purposes of navigability and recreation. The basis for this authority is in the Wisconsin state constitution, art. IX, § 1, which says that “the state shall have concurrent jurisdiction” with other states over border waters and “the carrying places between them shall be common highways and forever free.” However, the Court held that the DNR’s effort to protect private wetlands above the ordinary high water mark went beyond its constitutional authority. Instead, the DNR has the authority to regulate non-navigable wetlands under Wisconsin statute and pursuant to its police power to protect property. The Court was careful to draw a distinction between constitutional public trust doctrine authority and the police power, stating that while the latter is “potent,” it is also “subject to constitutional and statutory protections afforded to property […] and requires some balancing of competing interests in enforcement.”

For the third issue, the District claimed that the DNR exceeded its authority in considering wetland water quality standards in its decision. The Court concluded, after a statutory interpretation analysis, that the DNR was not precluded from wetland water quality standard consideration under Wis. Admin. Code § NR 103.

Finally, the Court held that the DNR erred in excluding testimony on economic impacts when making its decision. In response to the DNR’s concern that the consideration of economic impacts has no logical stopping point, the Court merely stated that a “reasonableness standard” should apply. The Court also noted that since the raising and lowering of water levels is a government regulation, economic impacts would be critical to determining the outcome of any takings claims that would arise out of the DNR’s water level decisions.

Modern Water Law: Private Property, Public Rights, and Environmental Protection provides a comprehensive text to study the range of legal issues and doctrines that affect water resources in the United States. The field of water law has evolved considerably in recent decades, expanding well beyond historic common-law doctrines of riparian reasonable use and prior appropriation. Modern Water Law thus offers a new conceptual approach to the field of water law as an integration of (1) private property (the common-law doctrines for riparian reasonable use and prior appropriation, as well as groundwater rights and the statutory schemes for administering water use rights), (2) public rights (navigation, the public trust doctrine, federal reserved rights, and interstate water management), and (3) environmental protections (the energy-water nexus, water pollution, and endangered species conflicts). The modern practice of water law requires attorneys to understand the interactions between different legal doctrines and regimes and how potential conflicts among them can be resolved in practice. Modern Water Law will prepare students and practitioners for the challenges of 21st century water law.

1. IntroductionPART I: PRIVATE PROPERTY RIGHTS TO USE WATER2. Riparian Law3. History and Principles of Prior Appropriation4. Groundwater5. Modern Application of Water LawPART II: PUBLIC RIGHTS AND INTERESTS IN WATER6. Control and Ownership of Navigable Waters7. Public Rights in Water: The Public Trust Doctrine8. Federal Water Interests9. Interstate Water Pollution, Apportionment and Management10. The Water-Energy NexusPART III: ENVIRONMENTAL PROTECTION OF WATER RESOURCES11. The Intersection of Water Quality and Water Quantity12. The Federal Endangered Species Act, Water Management, and Water Rights13. Protecting and Restoring Watersheds and Water Systems14. Public Interests, Private Rights in Water, and Constitutional Takings Claims

As demand for freshwater increases and surface water supplies diminish, states are increasingly tapping groundwater to meet their water needs. Like rivers and lakes, groundwater aquifers cross state lines and create legal challenges for allocation and management. For over a century, the Supreme Court has applied its equitable apportionment doctrine to allocate shared surface water supplies between states. The Court has not yet been faced with an equitable apportionment action for groundwater, but several disputes are emerging around the country that may soon command the Court’s attention.

This article examines how the equitable apportionment doctrine can be applied to an interstate groundwater dispute, using the Snake Valley Aquifer shared by Nevada and Utah as a case study. Equitable apportionment is a viable doctrine for resolving interstate groundwater disputes, but it is not ideal. Instead, interstate compacts provide a Constitutional mechanism for cooperation by which states may protect and utilize a shared natural resource. There are over twenty interstate compacts currently in effect, covering major interstate waters such as the Colorado River and Great Lakes. Some of these compacts address connected groundwater, but none to date are focused on sustainable aquifer management. Recently, Nevada and Utah have developed a proposed agreement to manage the Snake Valley Aquifer. While the proposed agreement was rejected for political reasons, and the Snake Valley Aquifer dispute itself seems headed for litigation, the agreement provides a model for sustainable and cooperative transboundary aquifer management.

December 06, 2012

The U.S. Supreme Court just issued a unanimous decision in Arkansas Game and Fish Commission v. United States, allowing a landowner to proceed with a takings claim for compensation from temporary flooding caused by the federal government’s operation of a dam. The decision reversed a 2011 Federal Circuit Court of Appeals decision that would have only allowed takings claims for “permanent or inevitably recurring” flooding.

However, the Court’s decision allowing a landowner’s takings claim for temporary flooding to proceed as a matter of federal takings law is not the end of the case. The more difficult and fundamental issue is whether, as a matter of state property law, ownership of riparian land in Arkansas comes with some expectation of temporary flooding. Justice Ginsburg wrote: “The determination whether a taking has occurred includes consideration of the property owner’s distinct investment backed expectations, a matter often informed by the law in force in the State in which the property is located.”

Then what does Arkansas water law say about a riparian property owner’s expectations regarding temporary flooding? The parties and lower courts did not address this fundamental issue, so Professors Robert Abrams, Zyg Plater, and I filed an amicus curiae brief detailing Arkansas water law, notably the balancing of interests implicit in defining a riparian property right. Justice Ginsburg’s opinion had a nice acknowledgment of our brief (titled Amicus Curiae Brief of Professors of Law Teaching in the Property Law and Water Rights Fields) in the first footnote of the opinion (slip opinion page 13). In reversing and remanding the case back to the Federal Circuit, the Supreme Court emphasized the need to examine state property law and other key facts before determining what compensation (if any) is due. The case demonstrates the continuing importance of common law water rights doctrines, even as many states are moving towards permit systems and administrative regulation of water use.

The laws that attempt to reduce climate change are well known. But what about laws to deal with the climate change that will occur regardless of these efforts? The Law of Adaptation to Climate Change takes a sweeping look at the current and proposed legal aspects of coping with climate change – from drought, extreme precipitation, heat waves, and wild fires to global shifts in temperature, sea level, water and food supply, coastal conditions, infrastructure, ecosystems, and human health and economies. Applicable laws exist at all levels (international, national, state, local) and in different forms (constitutions, statutes, agency regulations, judicial decisions, private agreements, voluntary guidelines); they are not only uncoordinated but collectively embody numerous contradictions and inevitable gaps.

This state-of-the-art compendium examines how laws are being modified, finessed, or imagined to deal with the impacts of climate change, both in the United States and around the globe. Chapter authors have significant experience in the legal aspects of climate change and are drawn from private practice, government, and academia. When it is not known how the law will, or even should, respond, these authorities suggest informed possibilities for future action.

On Wednesday November 9, 2011 the Michigan Supreme Court will hear oral argument in the case Michigan Department of Environmental Quality v. Township of Worth (S. Ct. Docket No. 141810). Worth Township is located in a picturesque region of Michigan on the shore of Lake Huron. A popular vacation destination, it is home to many small plots of land with cottages and homes along the Lake. The township developed without its own public sewerage system and residents installed their own private septic tanks. The existing system of private, individual septic tanks on small, dense plots of land is not sustainable, and many of the septic tanks are failing, contaminating Lake Huron with raw sewage discharges.

The Michigan Department of Environmental Quality (DEQ), in an attempt to resolve the issue, has been working with Worth Township for several years. In 2004, the township signed a district compliance agreement with the DEQ in which it agreed to construct a public sewerage system. After the township failed to uphold this agreement, DEQ sued the township in Circuit Court, requesting injunctive relief to force the township to construct the sewerage system. The Circuit Court held in favor of the DEQ, the township appealed and the Court of Appeals held in favor of the township, and the DEQ was granted leave to the Michigan Supreme Court.

The Great Lakes Environmental Law Center has filed an amicus curiae brief in support of the DEQ’s position. We argue that, under the Natural Resources and Environmental Protection Act (NREPA), (1) Worth Township is responsible for the widespread failure of the private septic systems within its borders; (2) the DEQ has authority to order Worth Township to install a sewer system; and (3) the Circuit Court has authority to enforce the order.

Part 31 of NREPA prohibits the discharge of injurious substances into state waters. Discharge of raw human sewage is prima facie evidence of a Part 31 violation by the municipality where the discharge originated. The septic systems within Worth Township’s borders are failing, causing sewage to discharge into Lake Huron. Therefore, the township is responsible for the discharge under NREPA. MCL 324.3109(2) creates a presumption that a municipality violates NREPA if raw sewage is discharged into state waters within municipal boundaries, even if the municipality does not directly own or operate the sewerage system. The Court of Appeals incorrectly applied this presumption as to whether the municipality owns or operates the source of the discharge.

Part 31 also grants the DEQ broad authority to “take all appropriate steps to prevent any pollution [it] considers to be unreasonable and against public interest in…any…waters of the state.” This authority includes the power to issue orders. The 2004 agreement between DEQ and Worth Township constitutes such an order.

Furthermore, the Circuit Court has injunctive authority to enforce the DEQ’s order. NREPA explicitly grants that authority. MCL 324.3115 states that the DEQ “may request the attorney general to commence a civil action for appropriate relief, including a permanent or temporary injunction, for a violation… or order issued[.]” Independently of NREPA, Michigan courts also have the power to force local governments to construct a public sewerage system. In People ex rel Stream Control Comm’n v. Port Huron, 9 N.W.2d 41 (1943), the Michigan Supreme Court held that it had common law injunctive authority to force the City of Port Huron to comply with a Department of Health order construct a public sewerage system.

As our amicus curiae brief demonstrates, Worth Township is responsible for the sewage discharge under NREPA, the DEQ has authority to order the township to construct a public sewerage system, and the Circuit Court has authority to compel enforcement with such an order. Special thanks to Wayne Law student Matthew Clark who worked on this project through the Transnational Environmental Law Clinic.

Update: In May 2012, the Michigan Supreme Court decided the case in favor of the DEQ. The court’s opinion sides with the amicus brief filed by the Great Lakes Environmental Law Center:

“We conclude that under NREPA, a municipality can be held responsible for, and required to prevent, the discharge when the raw sewage originates within its borders, even when the raw sewage is discharged by a private party and not directly discharged by the municipality itself.”

It’s a great outcome for protecting freshwater in Michigan and a nice legal victory for the DEQ and Great Lakes Environmental Law Center.

The Ohio Supreme Court this week ruled that the public has no right to use the shore of Lake Erie above the “natural shoreline,” which it defined as the line at which water usually stands when free from disturbing causes. The Court in State ex rel. Merrill v. Ohio Department of Natural Resources also decided that same line represents the boundary between privately owned uplands and the state-owned lakebed.

The unanimous 7-0 decision is a blow to lakefront property owners because it reversed aspects of earlier decisions in this case by lower Ohio courts which had drawn the boundary line for purposes of the public trust and state ownership at the water’s edge as it exists moment to moment. However, the Court also rejected the argument advocated by other parties in the case, the State and two environmental groups, that the boundary should be the ordinary high water mark (OHWM). In the aftermath of the Court’s opinion, both sides in the case seem to be declaring victory.

While the Court explained that neither the water’s edge nor the OHWM is the boundary, the opinion did not explain where “the line at which water usually stands when free from disturbing causes” exists on the shore. Fleshing out the meaning of that phrase, and the location of the boundary line, apparently will be left to future court opinions and/or future Ohio Department of Natural Resources (ODNR) regulations.

The Merrill case was begun in 2004 by a group of lakefront property owners in response to ODNR’s position that the state owned the shore up to the OHWM and the owners must obtain leases from the state for certain uses of the shore below the OHWM. (ODNR subsequently abandoned that position, leading the court of appeals to rule that the Ohio Attorney General lacked standing to pursue the appeal on behalf of the State, a ruling that the Supreme Court reversed.) Although the case began as a dispute over title, also at issue was the public’s right to use the Lake Erie shore. Pursuant to the public trust doctrine, the public has a right to use land and water within the public trust for certain important purposes, including boating and fishing. It is undisputed that Lake Erie and the lakebed are owned by the state and are subject to the public trust. The Merrill case involved questions of how far state ownership and the public trust extend up the Lake Erie shore and, secondarily, whether walking the shore is a protected use.

The Lake County Court of Common Pleas and the Ohio Court of Appeals for the 11th District had ruled that the public has no right to use the Lake Erie shore above the water’s edge; the public has a right to walk along the shore, but only to the extent they keep their feet wet by staying on state-owned lakebed (see this previous guest for more on the court of appeals decision). The Ohio Supreme Court did not expressly discuss the public’s right to walk along the shore, but it did hold that the territory held in trust by the state does not extend landward beyond the “natural shoreline” as it defined the term, meaning that the public has no right to use the privately owned shore above that natural shoreline. The Court held that the lakefront property owners have no title lakeward of that same natural shoreline.

Although the Court of Appeals had called the case one of “first impression,” the Supreme Court emphasized that its decision regarding the boundary of the public trust along the shore of Lake Erie was merely a reiteration of law settled in an 1878 Ohio Supreme Court case, which was clarified in a 1916 Court case and codified by a state statute in 1917.

The Merrill decision sharply contrasts with the 2005 decision by the Michigan Supreme Court in Glass v. Goeckel, which held that the public trust extends to the OHWM along the Michigan shores of the Great Lakes. The Glass Court ruled that the public has a right to walk along even privately owned shores up to the OHWM in Michigan.

I respectfully disagree with the Merrill opinion, at least regarding the public trust. The boundary of the public trust was not at issue in the 1878 case or any subsequent Ohio Supreme Court case, and Ohio Rev. Code §§ 1506.10 & .11 were not intended to modify the geographic scope of the public trust. Further, the Court erred in assuming that the boundary for title must be the same as the boundary for the public trust. Rather, in my view, the shores of Lake Erie passed to the State of Ohio up to the OHWM at the time Ohio became a state, and the State has never clearly relinquished the public trust in the shores of Lake Erie below the OHWM, so the public should have a right to walk along the Ohio shore of Lake Erie up to the OHWM. See Kenneth Kilbert, The Public Trust Doctrine and the Great Lakes Shores, 58 Clev. St. L. Rev. 1 (2010) (available free online through SSRN).

The Merrill case and its implications will be the topic of a panel discussion, featuring attorneys from both sides of the case, at the annual Great Lakes Water Conference on November 4 at the University of Toledo College of Law.

What’s in your water? Researchers have known for more than 40 years that pharmaceuticals and personal care products (PPCPs) – such as antibiotics, prescription and over the counter drugs, steroids, reproductive hormones, fragrances, soaps, and thousands of other products – can end up in our drinking waters (see the Micropollutants Clearinghouse to view thousands of studies, articles, and reports about PPCPs in drinking water). Studies done over the past several decades have indicated that these contaminants can be found in both surface and ground waters throughout the United States (as well as most other countries). This has raised serious concerns stemming from the possibility that the presence of these PPCPs may pose a threat both to human and environmental health, either through direct exposure (e.g., contact with endocrine disrupting compounds) or indirect consequences (e.g., emergence of antibiotic resistant bacteria). The water treatment and wastewater treatment communities have been especially concerned over PPCPs because of their ubiquitous nature and ability to persist or only partially degrade in water or during the wastewater treatment process.

Sources of PPCPs include human & animal feces and urine, hospital/medical wastes, wastes from industrial and agricultural processes, pharmaceuticals and personal care products that are disposed of inappropriately, urban runoff, and leachate from landfills. These contaminants are rarely treated or removed in the wastewater treatment process and typically remain in waters discharged from wastewater treatment plants into receiving streams and lakes, as well as in solid and liquid wastes applied to lands designated as application sites.

What have we done about PPCPs in our water? Not much, though not because of a lack of effort. The legal system (at least in the United States) was never meant to deal with micropollutants on this scale. For example, while common law remedies like trespass, nuisance, negligence, and strict liability may be applicable to concerns over PPCPs in water supplies, they rely on litigation, an all-to-often expensive, time consuming, and very case-specific process. Moreover, success in litigation requires plaintiffs to prove causation – which manufacturer produced the PPCP involved in the suit, and which PPCPs resulted in the harm alleged in the suit – hurdles that may be difficult to overcome.

An alternative to common law remedies might be found under federal statutory regimes including the Clean Water Act, Safe Drinking Water Act, Resource Conservation and Recovery Act, Toxic Substance Control Act, and Endangered Species Act. While these strategies may be relevant and important, their implementation also can be expensive and politically complicated. Moreover, none of these schemes specifically address PPCPs and none are singularly applicable to (let alone capable of managing) the thousands of different pharmaceuticals and personal care products introduced into our water systems every year.

A more effective route for responding to PPCPs in drinking water supplies may be to focus on alternative strategies that focus on removing (or limiting the presence of) PPCPs at the source. In the case of pharmaceuticals, alternative strategies might include:

Designing drugs and personal care products that minimize the human and animal excretion of wastes, which would then minimize the volume of PPCPs that enter the water system;

Changing the delivery mechanisms by better informing doctors and patients about the effects of PPCPs on the environment, and educating doctors and other professionals on how to individualize or tailor doses to the individual user rather than prescribing the manufacturers’ recommended dose;

Informing users on how to dispose of unused drugs and personal care products and producing a variety of package sizes to reduce the amount of unused drugs;

Developing more disciplined dispensing and inventory control protocols to reduce disposal of unused drugs, such as through limits on Internet sales and tying drug dispensing of the necessary quantity to the drug’s expiration date (i.e., minimize drug expiration before the course of treatment is completed);

Encouraging states or manufacturers of PPCPs to develop take-back arrangements and appropriate disposal/recycling programs; and

Developing nutrition and health maintenance programs that reduce illness and the need for PPCPs, as well as the use of alternative products that do not contain PPCPs, such as probiotics.

The issue of PPCPs in water supplies is a complex problem that will require more than one simple solution. Yes, it will require monitoring and regulating the PPCPs that do enter the water supply, new monitoring, detection, and analysis methods, and new drinking water treatment processes. Yet, to successfully limit the presence of these contaminants in our drinking water, it will also require a reduction in the sources of PPCPs. This reduction will be achieved only through a combination of technological and industry fixes as well as regulatory and statutory mechanisms.

(Note: Another complimentary strategy to address this problem is being pursued by the Great Lakes Environmental Law Center. Working with NRDC, GLELC filed a petition last year with the Food and Drug Administration to close a regulatory loophole that allows pharmaceutical drugs to be approved without considering their impacts on drinking water. For more info, see this previous post.)

July 18, 2011

The following guest post is by Melissa Scanlan, a legal expert who has spent over a decade working to protect the waters of her home state of Wisconsin. Much of her scholarship and advocacy has focused on the public trust doctrine and its role in state water management. For more info about Melissa, see her previous Great Lakes Law guest post.

When Nestle-Perrier tried to set up a spring water pumping and bottling plant in Wisconsin in 2000, I was part of the legal team that argued the DNR had a duty under the public trust doctrine and Wis. Stat. § 281 to consider the impact pumping groundwater has on navigable waters. The DNR countered that it was limited by the high capacity well statute to only consider the impacts outlined in that statute, which did not include impacts to the nearby surface waters. Because my clients won the case on other grounds, the Wisconsin courts never resolved this legal question in a published decision.

That is, until July 6, 2011, when the Wisconsin Supreme Court decided in favor of upholding constitutionally-based public trust protections for navigable waters.

The issue came before the court with different facts and different litigants than the Perrier case, arising out of a contested high-capacity well permit sought by the Village of East Troy near Lake Beulah. In Lake Beulah Management Dist., et. al. v. Wisconsin DNR, et. al., 2011 WI 54 (Wis. 2011), the DNR argued that it did have a duty to consider impacts to surface waters when issuing a high capacity groundwater well permit, based on the public trust doctrine and its general duty to protect all waters of the state in Wis. Stat. § 281.11 and § 281.12.

In its published opinion, the Supreme Court begins its legal analysis by underscoring that the public trust doctrine is a “fundamental tenet” of Wisconsin’s Constitution that should be broadly construed to protect public rights in navigable waters. “This court has long confirmed the ongoing strength and vitality of the State’s duty under the public trust doctrine to protect our valuable water resources.” The Court emphasized the legislature’s express delegation of authority to the DNR to carry out the “state’s affirmative obligations as trustee of the navigable waters….” (Lake Beulah Management Dist. ¶30-33.)

The Court concluded that the legislature accomplished this delegation through Wis. Stat. § 281.11 and § 281.12. In pertinent part, those statutes require that the DNR “shall serve as the central unit of state government to protect, maintain and improve the quality and management of the waters of the state, ground and surface, public and private.” The legislature empowered the DNR to enact a “comprehensive action program directed at all present and potential sources of water pollution . . . to protect human life and health, fish and aquatic life, scenic and ecological values and domestic, municipal, recreational, industrial, agricultural and other uses of water.” And, finally, the legislature expressly conferred on the DNR “necessary powers” to organize a “comprehensive program under a single state agency for the enhancement of the quality management and protection of all waters of the state, ground and surface, public and private.”

Rather than read the high capacity well statute in isolation and in a manner that put on blinders to the potential impact on the state’s public trust waters, the court held that the DNR has “the authority and a general duty to consider potential environmental harm to waters of the state when reviewing a high capacity well permit application.” (Lake Beulah Management Dist. ¶44.)

However, the duty is not one that requires the DNR to initiate a scientific investigation of environmental impacts on every high capacity well permit. Rather, the DNR “must consider the environmental impact of a proposed high capacity well when presented with sufficient concrete, scientific evidence of potential harm to waters of the state.” (Lake Beulah Management Dist. ¶4, 46.) In this case, the Court held, due to an apparent misfiling of a scientific affidavit, which resulted in it not being part of the administrative record, that the duty had not been triggered. (See id. ¶6.)

Yet, the Wisconsin Supreme Court delivered a resounding message in support of sound management of Wisconsin water resources that integrates surface and groundwater. This is good news for Wisconsin families, businesses, homeowners, and sportspeople who rely on water for their livelihood and quality of life.

“Whiskey is for drinking and water is for fighting over.” In my mind, this quote (mythically attributed to Mark Twain) conjures up images of tumbleweed blowing down the dusty streets of a town in then Old West, not the vast expanse of the Great Lakes basin. The ongoing debate over the so-called “bottled-water loophole” in the Great Lakes compact, however, demonstrates that the wisdom also applies east of the Mississippi.

Better information would help determine whether exporting water in smaller containers actually presents a threat to the Great Lakes basin. In addition, improved information would be useful for determining whether the disparate treatment complies with NAFTA and GATT, or if an exception applies. Currently, the lack of accurate information about water use within the basin weakens arguments on both sides and prevents resolution of the debate. Returning to the analogy of the Old West, it’s a little like showing up to a shootout at high noon with no bullets – both sides keep pointing at each other and pulling the trigger, but nothing much gets resolved.

April 26, 2011

In a sharply divided opinion, the Michigan Supreme Court today vacated its prior decision in Anglers of the AuSable v Michigan Department of Environmental Quality and Merit Energy Company (793 NW2d 596). The original decision was released in December 2010 and was a huge victory for environmentalists. It opened the door to citizen suits against the state under the Michigan Environmental Protection Act and held that diverting contaminated water from one river to another is unlawful.

However, the December 2010 decision was authored by then-Justice Alton Davis, who had already lost the November election and was essentially a lame duck for the liberal majority before the new justices took their seats. At the time, many observers (myself included) expected the decision to be vacated once the new majority took over, which is exactly what happened. (See this previous post for more info on the now-vacated December 2010 decision.)

By a 4-3 vote, the new conservative majority led by Chief Justice Young vacated the Supreme Court’s December 2010 decision and the court of appeals decision from 2009 (770 NW2d 359). As detailed in its opinion, the Court reasoned that the case was clearly moot, since the defendant Merit Energy gave up on the proposal and no longer sought to discharge the pollution at issue. This view is consistent with the dissent of then-Justice (now Chief Justice) Young in the December 2010 decision. As is typical for the Michigan Supreme Court, the opinion includes a harsh dissent (written by the liberal minority) and several concurring opinions, each accusing the other of hypocrisy and inconsistency in respecting precedent.

After getting through the divisive court politics and arguments over mootness, the bottom line is that the Michigan Supreme Court’s 2004 decision in Preserve the Dunes, Inc v Department of Environmental Quality (684 NW2d 847) is now restored, after having been overruled in the December 2010 decision. Preserve the Dunes cast doubt on the ability of citizens to bring a Michigan Environmental Protection Act (MEPA) suit against the state for permitting pollution by private parties, and now that uncertainty remains.

The December 2010 decision was also a big win for environmentalists on the issue of standing, which gives a party the right to have its claims heard in court. While MEPA allows “any person” to bring suit under the law, the Michigan Supreme Court’s 2007 decision in Michigan Citizens for Water Conservation v Nestlé Waters North America, Inc (727 NW2d 447) adopted a far more restrictive test for citizens. This precedent was overruled by the December 2010 Anglers of the AuSable decision, which is now vacated. Confused? Don’t worry about it – the issue of standing in Michigan courts was conclusively addressed in the Supreme Court’s 2010 decision in Lansing Schools Education Association v Lansing Board of Education (792 NW2d 686), which also overruled Michigan Citizens for Water Conservation. So vacating the Anglers of the AuSable decision will not reverse the environmentalists’ victory on standing.

My take is that Chief Justice Young was probably correct to raise mootness as a concern last year, and perhaps the appeal should never have been heard. On the other hand, there is still considerable uncertainty about the scope and implications of the Preserve the Dunes decision, leaving citizens unsure of their legal options to challenge state permitted pollution. One way or another, attorneys, businesses, and citizens in Michigan need clarification and certainty in this area of law. Instead, we got another politically divided opinion that may only last until the next election.

March 28, 2011

I’ve just published a new article – “Interstate Water Compacts and Climate Change Adaptation” in the Environmental & Energy Law & Policy Journal. As the name suggests, the article looks at the major interstate water compacts in light of expected climate change impacts on water resources. The article may also be a useful resource for water policy wonks, as it includes short summaries of every interstate water allocation compact (27 in all) and brief analyses of climate change vulnerability for the respective interstate watersheds. The full article is available free online, the citation is Noah D. Hall, “Interstate Water Compacts and Climate Change Adaptation,” 5 Envtl. & Energy L. & Pol’y J. 237 (2010), and here is the abstract:

Over 95% of the available surface freshwater resources in the United States are interstate in nature and governed by interstate water compacts. These interstate compacts vary tremendously in how they allocate and manage interstate waters. Until recently, the water resources governed by interstate compacts have been relatively stable and unaffected by drastic changes in long-term weather patterns. However, within the next few decades North America is expected to experience increased regional variability in precipitation and susceptibility to drought. This article first looks at these expected changes on a macro and regional level to evaluate the increased stress on water resources that is expected to arise in some watershed. Interstate compacts may be the most important legal consideration in assessing water supply risks from climate change, and this article provides a critical evaluation of every interstate water compact: how it works, the resources it governs, and the rights and responsibilities it assigns to the party states. The article then assesses the relative risk and legal uncertainty resulting from climate change for interstate water resources subject to interstate compacts. The article concludes with a comparative assessment of the watersheds most at risk from climate change and the interstate compacts most able to adapt to climate change.

February 17, 2011

The Ohio Supreme Court earlier this month heard oral arguments in State ex rel. Merrill v. Ohio Department of Natural Resources, in which two lower courts have ruled that the public has no right to use the shore of Lake Erie above the water’s edge. Professor Ken Kilbert, Director of the Legal Institute of the Great Lakes at the University of Toledo College of Law, has followed this case closely and wrote about the lower court decision in a previous guest post. Professor Kilbert has published a comprehensive article on this issue, “The Public Trust Doctrine and the Great Lakes Shores,” 58 Clev. St. L. Rev. 1 (2010) (available free online through SSRN) and previews the case looking at the recent oral arguments.

It is undisputed that the State of Ohio owns the bed of Lake Erie in trust for the public to use. Hotly disputed in State ex rel. Merrill v. Ohio Department of Natural Resources, however, is both the public’s right to use the shore of Lake Erie and the proper boundary between the state-owned bed and the privately owned uplands. In 2009, the Ohio Court of Appeals for the 11th District affirmed a Lake County Common Pleas Court decision holding that the water’s edge – as it exists moment to moment – serves as the boundary between privately owned lakefront property and the state-owned lakebed, and that lakefront owners can exclude the public from the privately owned shore above the water’s edge. These Ohio lower court opinions contrast sharply with the Michigan Supreme Court’s 2005 decision in Glass v. Goeckel, which held that the public trust doctrine affords the public a right to walk along even privately owned shores of the Great Lakes up to the ordinary high water mark (OHWM). The dispute was precipitated by the Ohio Department of Natural Resources (ODNR) claiming state ownership of the shore below the OHWM, and the courts held that lakefront owners can use the property down to the water’s edge without the need to obtain leases from ODNR.

Three attorneys argued before the Ohio Supreme Court in Merrill on Feb. 1. Stephen Carney, on behalf of the Attorney General of Ohio, argued in favor of a boundary at the OHWM: above the OHWM is privately owned, below the OHWM is owned by the state, and the public has the right to boat, fish and walk up to the OHWM pursuant to the public trust doctrine. Many of the justices’ questions to Mr. Carney focused on another issue – the Attorney General’s standing to pursue the case after ODNR abandoned its original position requiring lakefront owners to obtain leases for uses below the OHWM. Irrespective of how the standing issue is resolved, the Court should reach the merits of the case because intervenors Ohio Environmental Council and National Wildlife Federation (which ceded their oral argument time to the State) also appealed.

Attorney Homer Taft, himself a lakefront owner, urged that the boundary between state-owned lakebed and privately owned upland is the ordinary low water mark. The public trust doctrine, according to Mr. Taft, gives the public the right to use the waters of Lake Erie but not the beds above the low water mark. Attorney James Lang, counsel for the lakefront owners group, essentially asked the Court to affirm the lower court decisions setting the boundary for ownership and the public trust doctrine as the water’s edge. In addition to the parties’ briefs and oral arguments, the Court received at least a dozen amicus briefs on behalf of more than 30 interested persons and entities.

I learned long ago that it is foolhardy to predict how an appeal will be decided, especially based on the oral arguments. So I will close by offering my own view of what the law should be regarding the Ohio shore of Lake Erie. Pursuant to the equal footing and public trust doctrines, the State of Ohio acquired the land underlying Lake Erie up to the OHWM when it joined the United States and continues to hold that land in trust for the public to use for boating, fishing and other protected uses. Even if the State somehow relinquished title of the shore from the OHWM down to the water’s edge (I disagree), the state legislature has not relinquished the public trust in the shore below the OHWM. Therefore, the public should have the right to walk along the shore of Lake Erie in Ohio up to the OHWM, just as the public does along the shores of the Great Lakes in Michigan. For more analysis, see Kenneth Kilbert, The Public Trust Doctrine and the Great Lakes Shores, 58 Clev. St. L. Rev. 1 (2010), available online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1604025.

December 31, 2010

Just before the end of the calendar year, the Michigan Supreme Court has issued a sharply divided decision in Anglers of the AuSable v. Michigan Department of Environmental Quality and Merit Energy Company. The majority’s decision is a huge legal victory for Anglers of the AuSable and other environmental groups on several very important state law issues. However, the decision was authored by Justice Alton Davis, a Democrat who was not reelected last month, when Republican-nominated candidates and Justices won all open seats on the Michigan Supreme Court. Thus, the decision comes right before a major change in the Court’s balance and composition as a result of the 2010 elections, and with the dissenting justices set to regain the majority next week, it’s not clear how lasting the Anglers of the AuSable victory will prove to be for environmentalists.

The case involves a dispute over a deal Merit Energy reached with the state to remediate groundwater contamination and discharge over one million gallons per day of water (which originates in the Manistee River watershed) into Kolke Creek and the AuSable River watershed. For more background on the case (including all briefs), see my previous post from September 28, 2010.

The case presented the Michigan Supreme Court with several fundamental legal issues. The first two issues concern the ability of citizens to sue under the Michigan Environmental Protection Act (MEPA), which expressly provides that “any person” may bring a court action for “the protection of the air, water, and other natural resources and the public trust in these resources from pollution, impairment, or destruction.” (MCL 324.1701) Citizens and environmental groups historically had used MEPA to bring suit against private parties for their pollution and against state agencies when they allow such pollution by granting permits. However, the ability of citizens to enforce MEPA in the courts and against the state was limited by several Supreme Court decisions in the past decade.

First, the Michigan Supreme Court’s 2004 decision in Preserve the Dunes, Inc v Department of Environmental Quality (684 NW2d 847) cast doubt on the ability of citizens to bring a MEPA suit against the state for permitting pollution by private parties. As I predicted in my September post, in its Anglers of the AuSable decision, the Court expressly overruled Preserve the Dunes and held that state agencies can be sued in court under MEPA and held accountable for pollution that will result from issuing permits. Chief Justice Kelly, who dissented in Preserve the Dunes and joined the Anglers of the AuSable majority in overruling that prior decision, wrote a separate concurrence to justify the decision under the doctrine of stare decisis.

The second MEPA issue involves the “standing” of citizens to have their cases heard in court. While MEPA allows “any person” to bring suit under the law, the Michigan Supreme Court’s 2007 decision in Michigan Citizens for Water Conservation v Nestlé Waters North America, Inc (727 NW2d 447), adopted a far more restrictive test based on federal standing jurisprudence. Under the 2007 ruling, a citizen seeking to bring a MEPA claim was required to establish that “he has suffered or will imminently suffer a concrete and particularized injury in fact.” Again, as I predicted in September, the Court in Anglers of the AuSable overruled the restrictive standing test used in Michigan Citizens for Water Conservation and instead relied on its 2010 decision in Lansing Schools Education Association v Lansing Board of Education to apply MEPA’s express statutory language and allow any citizen to bring suit under the law.

In addition to the MEPA issues, the Michigan Supreme Court was also faced with several legal issues under Michigan riparian water law. Most significantly, the Court was asked to rule on the appropriate legal test for discharge of polluted water and whether Merit’s proposed diversion of contaminated water from the Manistee River watershed into Kolke Creek and the AuSable River watershed was lawful. The Court declined to clarify the relevant legal test, instead offering a simple and conclusory opinion that Merit’s discharge, in these circumstances, is “manifestly unreasonable”:

While the parties agree that the reasonableness of the water’s use is the determining factor in deciding water-use cases, they do not agree on using the “reasonable use balancing test” from Nestlé. We do not pass judgment on that test in this case because, under any test and by any standard, the discharge plan at issue is manifestly unreasonable.

The Court continued:

Defendants have presented no authority for the proposition that the diversion of contaminated water from one source to an uncontaminated watershed should be considered reasonable. It would be incongruous to hold that it is reasonable to decontaminate water by contaminating different water.

This broad holding against diverting water was tempered in several accompanying footnotes (16 and 17), stating:

We do not hold that diverting water from one watershed to another is ipso facto unreasonable. Our concern today is with the discharge of contaminated water into an uncontaminated watershed. ... In reaching this decision, it is important to note that we focus our ruling on the reasonableness of using Kolke Creek as a discharge point for contaminated water removed from a separate watershed. We are not basing this decision on Merit’s status as a riparian or groundwater user. We are not basing this decision on Merit’s status as an off-tract or on-tract water user. And we are not basing this decision on the fact that Merit is seeking to divert water out of the Manistee River watershed.

A final water law issue, whether a riparian landowner (in this case the state) may convey riparian rights by easement to a non-riparian (in this case Merit Energy), was avoided by the Court because it was not “outcome-determinative” according to the majority.

This case is moot. Not only has Merit voluntarily abandoned the easement that granted it physical access to Kolke Creek, the circuit court has also vacated the underlying DEQ permit that would have allowed it to make its proposed discharge. Accordingly, any substantive decision that this Court renders only affects the parties in the abstract. This Court has long stated that it is not a constitutional exercise of the judicial power to decide abstract cases. Therefore, I vehemently dissent from this Court’s decision to render a substantive ruling in this case.

Furthermore, I strongly dissent from the lead opinion’s unnecessarily disruptive disposition of the substantive issues in this case. The lead opinion fashions out of whole cloth a categorical rule that “contaminated” water originating from one watershed can never be discharged into watercourses in another watershed because such a discharge inherently violates the riparian rights of landowners at the point of discharge. This decision has no basis in Michigan’s well-established water law, under which the touchstone of “reasonableness” has served the citizens of this state, including these riparian plaintiffs, very well. Finally, the lead and concurring opinions’ claim that Preserve the Dunes was wrongly decided is inconsistent with the plain language of MEPA and will wreak havoc on this state’s legal system.

In short, the lead opinion’s palpably erroneous decision and the concurring justices’ acquiescence in the result of that decision are affronts to the rule of law and reflect the majority’s unseemly haste to render a decision in this case before the end of calendar year 2010. The decision this Court renders today is a prime example of the naked exercise of power without constitutional warrant. While there may be some who will welcome today’s result, they should fear a judiciary that is willing to bend the law to accomplish its will. Those who support it may live to see this decision further undermine the state’s fragile economy.

My personal take (full disclaimer – the Great Lakes Environmental Law Center was involved in the litigation and filed an amicus brief with the National Wildlife Federation) is that the MEPA issues were correctly decided, most importantly restoring citizen standing based on the legislature’s express statutory language. I’m sympathetic to the ultimate outcome regarding the discharge of polluted water from another watershed, but the majority offered a very short and unsatisfying analysis of the underlying legal principles and issues and did little to clarify this area of law. I agree with Justice Young that the majority’s new rule on discharge of polluted water warranted far more explanation and citation of precedent.

Regardless of the politics and legal details of the opinion, the decision is a huge victory for Anglers of the AuSable and a fitting final tribute to Rusty Gates who founded the organization and presided over it until he died at age 54 last December. Thousands of fly fishermen loved Rusty and his Gates Au Sable Lodge in Grayling. Rusty was a conservation champion, and his efforts to protect the AuSable River were equaled only by his fishing knowledge and enthusiasm for the sport.

Climate change driven by greenhouse gas emissions is substantially altering water availability while increasing water demand. Shifts in domestic energy policy and production, while needed to confront the challenge of climate change, may further stress the nation’s water resources. These changes and new demands will be most severe in regions that are already experiencing water stresses and conflicts. This article examines the extent of the changes in water supply and demand by assessing how water conflicts will be addressed in the four overarching water use categories: water for population security, water for ecological security, water for energy security, and water for food security. The analysis suggests that water governance institutions and policies need to be retooled to better accommodate the necessary reallocation of water that will serve the nation’s water security needs.

September 28, 2010

Next week, the Michigan Supreme Court will hold oral arguments in the case Anglers of the AuSable v. Michigan Department of Environmental Quality and Merit Energy Company. The case has received little attention (update: a notable exception is the great coverage of the case by Sandra Svoboda of Metro Times), but will likely have significant implications for environmental and water law in Michigan. The case involves a dispute over a deal Merit Energy reached with the state to remediate groundwater contamination and discharge over one million gallons per day of water (which originates in the Manistee River watershed) into Kolke Creek and the AuSable River watershed.

The Michigan Supreme Court is hearing the case to address several fundamental legal issues under Michigan law. The first two issues concern the ability of citizens to sue under the Michigan Environmental Protection Act (MEPA), which expressly provides that “any person” may bring a court action for “the protection of the air, water, and other natural resources and the public trust in these resources from pollution, impairment, or destruction.” (MCL 324.1701)

Citizens and environmental groups historically had used MEPA to bring suit against private parties for their pollution and against state agencies when they permit such pollution. However, the Michigan Supreme Court’s 2004 decision in Preserve the Dunes, Inc v Department of Environmental Quality (684 NW2d 847) cast doubt on the ability of citizens to bring a MEPA suit against the state for permitting pollution by private parties. Given the make-up of the current court (Chief Justice Kelly, who dissented in Preserve the Dunes, is now in the majority on most issues before the court), I expect that the Michigan Supreme Court will either overrule Preserve the Dunes or narrow the decision to its unique facts, and once again allow citizens to hold state agencies accountable under MEPA when the agencies permit pollution, impairment, and destruction of Michigan’s environment.

The second MEPA issue involves the “standing” of citizens to have their cases heard in court. While MEPA allows “any person” to bring suit under the law, the Michigan Supreme Court’s 2007 decision in Michigan Citizens for Water Conservation v Nestlé Waters North America, Inc (727 NW2d 447), adopted a far more restrictive test based on federal standing jurisprudence. Under the 2007 ruling, a citizen seeking to bring a MEPA claim was required to establish that “he has suffered or will imminently suffer a concrete and particularized injury in fact.” Again, with the changed make-up of the court (the dissenting justices in Michigan Citizens for Water Conservation now command a majority on the court), it was widely expected that the current court would overrule the restrictive standing requirement and allow “any person” to bring a MEPA suit (as the legislature expressly provided). As it turned out, the court did just that in its decision early this summer in Lansing Schools Education Association v Lansing Board of Education, expressly overruling the prior restrictive standing test and opening the court doors to any plaintiffs with a cause of action. Given the Lansing Schools decision, it is almost certain the court will once again allow “any person” to file a MEPA claim in court.

In addition to the MEPA issues, the Michigan Supreme Court will also use the case to clarify several related issues under Michigan riparian water law. First, the court will determine whether a riparian landowner (in this case the state) may convey riparian rights by easement to a non-riparian (in this case Merit Energy). Second, the court will determine if discharge of water, including pollution, is permissible under riparian law. Finally, if such actions are permissible under riparian law, the court will determine whether the desired activities are given the benefit of a “reasonable use balancing test” in which their benefits are compared to their harms. Predicting how the court will rule on these issues is a bit tougher than predicting the outcome of the MEPA issues. I expect the fundamental “reasonable use” approach to be upheld, but not for harmful “pollution.” How the court will rule on conveyance of riparian rights by easement is a toss-up, and could go either way.

The Great Lakes Environmental Law Center and National Wildlife Federation filed a superb and comprehensive amicus brief that provides a sound approach for the court to use in addressing these complex environmental and water law issues. (Great work by Sara Gosman of NWF, Nick Schroeck of GLELC, and the students of the Wayne Environmental Law Clinic.) Here are links to all of the briefs filed; oral argument is scheduled for Wednesday October 6:

From a legal perspective, the Colorado controversy raises some interesting new issues about bottling and selling water under western prior appropriation law. To obtain water rights to pump the desired spring water, Nestle reached a deal with the city of Aurora to lease 65 million gallons of Arkansas River water per year for twenty years. In theory, the leased water offsets Nestle’s spring water pumping and ensures that other water rights to the river are not harmed. It’s an interesting market-based solution to obtain spring water for bottling under prior appropriation law in a Western water basin that is already fully used.

However, prior appropriation law restricts the water right to a specific beneficial use, which for the city of Aurora was municipal supply. As reported in the Colorado Independent, the general manager of the Upper Arkansas Water Conservancy District raised questions about whether the city of Aurora can transfer its water rights to Nestle, stating: “Water is decreed for specific uses in specific areas. Aurora’s water rights in the Arkansas Basin were decreed for their use in their municipality.” Because Aurora’s water rights are for the beneficial use of municipal supply, not commercial bottling, the water rights may not be valid if used by Nestle to offset its spring water pumping.

In addition to raising unique prior appropriation legal questions, the Colorado dispute again demonstrates the need for reform of federal bottled water regulations. We don’t need the federal government to regulate water pumping for bottled water, a field historically left to the states. Instead, we simply need the federal Food and Drug Administration, which sets rules for defining and labeling “spring water,” to stop encouraging the pumping of water from small, vulnerable spring water systems with its label rules. This could be a relatively easy win-win policy reform, especially if one of the influential national environmental groups worked directly with Nestle and other industry players to develop a solution and bring it to the FDA with broad support.

And while I’m on the subject of Colorado water, I have to pass along this little bit of water policy nonsense from the Republican Colorado Gubernatorial candidate, Dan Maes (and again reported by Scot Kersgaard of the Colorado Independent). Speaking to the Colorado Water Congress about the complex problem of interstate management and over allocation of the Colorado River, Maes stated: “If it starts in Colorado, it’s our water.” Sorry Dan, but a century of well established law, from the Supreme Court of the United States and binding compacts approved by Congress and the western states (including Colorado), says just the opposite. The upstream state does not own the entire river nor can it use all of the water to the detriment of the many downstream states that also have sovereign rights to water resources. Maes’ declaration brings back memories of Judson Harmon, the former Attorney General whose name is forever associated with his proposed (and widely rejected) doctrine of absolute territorial sovereignty over rivers. If Mr. Maes becomes Colorado’s next governor and takes action based on his ill-informed view of interstate water rights, he’ll quickly find himself on the losing end of a Supreme Court case.